Today, the National Labor Relation Board’s new “quickie” or “ambush” election rule takes effect and alters nearly every stage of the Board’s representation election procedures. Although legal challenges to the rule are pending in two federal district courts, for now, the rule is in effect and the NLRB will apply it to petitions filed today or any time thereafter.
What is the bottom line?
In sum, and as we have discussed in alerts and webinars in the past, the Board’s new rule requires employers to do more work in less time. Whether it is providing information to the NLRB or identifying issues for a hearing or talking to employees about election issues, employers will be under tremendous pressure once a petition is filed. Under the NLRB’s former election procedures, the median time from petition to election was around 38 days. Under the new rule, the timeline from petition to election might look like this:
Day 0: Petition Filed and Served
- A petitioner can file the new petition forms electronically on the Board’s website, by mail, by fax, or in person at an NLRB regional office.
- The petition must be accompanied by a showing of interest and a certificate of service indicating that all parties named in the petition were served with a copy of the petition, a statement of position form, and a description of the new procedures.
Day 0-1: Notice of Hearing Issued
- The NLRB Regional Office will issue a notice setting a hearing date eight days after service of the Notice of Hearing and a statement of position due date for the named parties.
Day 2-3: Notice of Petition for Election
- The employer will receive from the NLRB a Notice of Petition for Election which must be posted within two business days of service of the Notice of Hearing. The employer must also distribute the Notice of Petition for Election electronically if it customarily communicates with employees electronically. Failure to post or distribute may be grounds for setting aside an election.
Day 7: Statement of Position
- The statement of position is due by noon the business day before the hearing.
- The statement of position must include a detailed contact list of all individuals in the proposed unit. If the employer objects to the proposed unit, it must include separate lists of individuals that it believes should be added to or excluded from the unit. The statement must include all issues the employer intends to raise during the pre-election hearing or the issue will be waived, except arguments regarding the NLRB’s jurisdiction cannot be waived.
Day 8: Pre-Election Hearing
- The stated purpose for a hearing is to determine whether a question of representation exists; individual voter eligibility issues ordinarily need not be litigated before an election is conducted. Thus, issues regarding the supervisory status of any particular individual or group of individuals may not be resolved before an election.
- The hearing officer will not take evidence on undisputed issues or issues that were not raised in the statement of position. On disputed issues, the parties may be allowed to make offers of proof or the hearing officer may take evidence depending on the circumstances.
- The new rule provides for oral argument at the close of the hearing and allows for post-hearing briefs only with special permission from the Regional Director.
Day 11: Regional Director Decision and Notice of Election
- Given the streamlined hearing process, a Regional Director likely will issue her decision, called a “Decision and Direction of Election” (DDE), within days of the hearing.
- The DDE will include a decision on the disputed hearing issues and the type, date, time and location of the election and eligibility period. The new rule provides that the election date should be set for the “earliest date practicable.”
- Along with the DDE, the Regional Director will send the parties a Notice of Election which must be posted or distributed for three full working days before 12:01 a.m. of the day of the election.
- A party may appeal the DDE (called a “request for review”), but such appeal will not delay the election.
Day 13: Voter List
- Employer must provide a voter list (formerly known as the “Excelsior List”) to the NLRB and the parties within two business days after the DDE issues.
- The list must be alphabetized and include all voters’ full names, work locations, shifts, job classifications, and contact information, including home addresses, “available” personal e-mail addresses and “available” home and personal cell phone numbers.
- The list must be in “searchable, common, everyday electronic file formats.”
Day 15: Earliest Potential Election Date
- By rule, the recipient of the voter list, in most cases, a union, is entitled to have the list for 10 days before the election. The union may waive all or part of the 10 days. In this example, if the union waives the entire 10 days, the election could be conducted 15 days after the petition is filed. If the union takes the full 10 days, the election could be conducted 25 days after the petition is filed.
Take-away for Employers
The above hypothetical is an example of how the NLRB’s new rule may play out. Time will tell the impact of the new rule on petitions filed on or after April 14.
For now, employers can enhance their ability to deal with the new rule and the expected increase in union organizing by studying the NLRB’s recently-issued guidance memorandum and FAQs on the new rule.
Employers should also consider the following steps to prepare:
- Designate a team that is responsible for dealing with the new rule once a petition is filed. For example, this team would be responsible for: reviewing all NLRB correspondence; communicating with the NLRB; preparing documents (employee lists, statements of position, etc.) to be submitted to the NLRB; and preparing for a hearing.
- Designate another team (tightly coordinated with the team described above) that is responsible for campaign issues if a petition is filed. For example, this team would be responsible for: gathering information on the petitioning union; developing a plan for communicating the employer’s position on third party representation; assessing vulnerabilities and on-going evaluation of campaign strategy.
Once a petition is filed, both teams will be busy at the same time. Given the compressed time frame under the new NLRB election rule, employers are well advised to begin preparing now in order to successfully respond to a simultaneous NLRB petition and campaign.